EASEMENTS

EASEMENTS

Definition
1. Private property right which passes with the land •Positive or negative right of user over land of another:
  1. e.g: right of way, right to land, parking easements
Methods of acquistion:
1. By express grant or reservation:
  1. Deed of grant that states terms of easements or take form of a conveyance in the clause
2. Prescription
  1. Modes of prescription:
    1. Common law
      1. Claimant can show right has been enjoyed for 20 years. could have been since 1189
    2. Lost modern grant
      1. Court willing to presume valid grant of right was given in the past
    3. Prescription Act 1832
      1. Easements acquired upon 20-40 years uninteruppted use as of right. Acquisition will not be defeated by showing use began after 1189
  2. Satisfy 3 conditions to establish easement has been acquired:
    1. 1) User must be 'as of right:'must be nec vi (without force) , nec clam (without secrecy), nec precario (without permission)
    2. 2) User must be 'continuous'
    3. 3) User must be on behalf of one fee simple against another fee simple owner
3. Implied grant
  1. law reads the grant of an easement into a document or agreement
  2. Under Wheeldon v Burrows: acquisition of easement by implied grant. quasi-easement
  3. Where the grantor, the owner of the servient land, disposes of part of its land
To satisfy as an easement, 4 characteristics under R v Ellensborough 1956:
1. Casebrief: residential properties had been given a right of common enjoyment of a park which was adjacent to their houses and which was vested in trustees. This right was held to have been validly granted as an easement
2. 1. a dominant and a servient tenement
  1. benefit must be attached to one piece of land (dominant tenement) & burden must be exercisable over another piece of land (servient tenement)
  2. easement cannot exist in gross ie. to unattached piece of land
3. 2. the easement must accommodate the dominant tenement
4. 3. the dominant and servient owners must be different persons
5. 4. the easement must be capable of forming the subject matter of a grant
  1. Capable grantor/grantee
6. Rights cannot be an easement if:
  1. 1) Requires servient owner to spend money or
  2. 2) Amounts to exclusive possession of servient land
  3. 3) Is not exercisable over right
Problems
1. Courts reluctant to recognise new easements e.g. Hunter v Canary Wharf [1997]: no easement of a clear view Hill v Tupper (1863): easement to hire pleasure boat= not easement, does not accomadate canal bank
Termination of easements by:
1. Merger: union of dominant and servient
2. Release
  1. Express: servient owner acts upon promise been released from burden of easement
  2. Implied: non-user not sufficient although easement has not been used for a long period
  3. Statute
3. Change of character: change of dominant tenement
IN LAW (deed):
1. When created by competent grantor & created by deed,equivalent in duration to legal estate in land, expressly acquired (grant/reservation) in respect to land
2. Enforcement against 3rd party:
  1. REGISTERED LAND:
    1. Expressly acquired: registration by s27 LRA 2002 to make easements legal
    2. Impliedly acquired: amounts to overriding interest under s3 LRA 2002
  2. UNREGISTERED = binds whole world
IN EQUITY (written agreement)
1. Created in compliance with S53 LPA1925 or by equitable estate owner or an attempt to create legal easement fails to meet legal formalities
2. Enforcement against 3rd party:
  1. REGISTERED LAND: Expressly or impliedly acquired: where entered as notice on charges register, servient land will be binding
  2. UNREGISTERED LAND: will not bind legal purchaser of legal estate for money
Remedies
1. Abatement: allows dominant owner to remove obstruction that prevents him from enjoying exercise of easement
2. Damages: is substantial interference with enjoyment of easement: Weston v Lawrence 1961
3. Injunction: restrain interference of right that dominant owner complains it will be justified where infringement is trivial
PROFITS A PRENDE
1. Allows person to go into land of another, servient land and take natural produce which itself capable of ownership. No need for dominant tenement as profit can exist in gross.

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